New Papers on FRAND in China and India

1.  Xiuting Yuan and Paul Kossof have published an article titled Developments in Chinese Anti-Monopoly Law:  Implications of Huawei v. InterDigital on Anti-Monopoly Law in Mainland China, 37 European Intellectual Property Review 438-41 (2015).  Here is the abstract:

Recent litigation between Huawei Technologies and InterDigital Group in the People's Republic of China has been closely followed by the international legal community owing to its relation to cases in the US and implications for intellectual proeprty holders and licensees.  This article analyses this important case and the potential effects on anti-monopoly litigation in China.

2. Natalie Yeung  has published a paper titled IP and Competition Law-The Chinese Perspective in the Journal of Antitrust Enforcement (available here, behind a paywall).  Here is the abstract:

Recent case law and enforcement activities in China have begun to shed light on the approach of Chinese courts and competition authorities towards the application of competition law to issues involving intellectual property rights. This article considers these developments against the backdrop of the prevailing European and US practices, with particular focus on standard essential patents and how they relate to the issues of: (i) compulsory licensing; (ii) use of injunctive relief to enforce standard essential patents; (iii) how a FRAND royalty rate should be determined; and (iv) tying or bundling of licences. Although some of the principles applied by the Chinese courts and authorities are broadly in line with those adopted in the European Union and the US, the lack of a clear approach in areas such as compulsory licensing, the concept of ‘willing licensee’ and the determination of FRAND rates serves as a reminder that the regulation of competition and intellectual property laws in China is a comparatively recent endeavour and continues to evolve. The article concludes with a summary of competition enforcement activities in other areas of intellectual property rights and the lessons that businesses should be aware of in China.

3. J. Gregory Sidak has published  an article titled FRAND in India: The Delhi High Court's emerging jurisprudence on royalties for standard-essential patents, 10 JIPLP 609 (2015).  Here is a link to the paper, and here is the abstract:

Indian jurisprudence on fair, reasonable, and nondiscriminatory (FRAND) licensing practices for standard-essential patents (SEPs) is at a relatively nascent stage. Unlike US and EU courts, which have dealt with cases concerning calculating a FRAND royalty for a considerable time, Indian courts and the Indian antitrust authority—the Competition Commission of India (CCI)—have only just begun to decide such cases.

In its initial orders in the first two antitrust complaints concerning SEPs, the CCI seemed to favour using the smallest salable patent-practising component (SSPPC) as the royalty base to determine a FRAND royalty. However, in the short time since the CCI's orders, the Delhi High Court has rendered contrary decisions in two SEP infringement suits. The Delhi High Court's decisions use the value of the downstream product as a royalty base and rely on comparable licences to determine a FRAND royalty. The Delhi High Court's decisions are not only consistent with sound economic principles, but also indicate that the court is responding to the judicial and industry trends in the rest of the world.

Because the CCI is still investigating the antitrust complaints with respect to the same SEPs, the CCI could benefit from considering the legal and economic arguments in the Delhi High Court's decisions. It would be counterproductive for the emerging FRAND jurisprudence in India if the judiciary and the competition authority take opposing views toward the rights of SEP holders and SEP implementers.